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Freedom of Speech - Expressive Conduct

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In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), Justice ROBERT H. JACKSON wrote that symbols are "a short cut from mind to mind." Expressive conduct or SYMBOLIC SPEECH involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivalent of speech and is protected by the First Amendment.

In TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S. Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the VIETNAM WAR, because their conduct was "akin to pure speech" and did not interfere with the work of the school or the rights of other students.

In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed.2d 151 (2001), the U.S. Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after-school activities. The Court emphasized that the Establishment Clause could not serve as a barrier to the organization's exercise of its free speech rights. Justice CLARENCE THOMAS, in his majority opinion, addressed the freedom-of-speech argument. He noted that the school was a limited public forum and that the state therefore was not required to permit persons "to engage in every type of speech." However, the state's ability to restrict speech was not unlimited. In addition, the state could not discriminate against speech on the basis of viewpoint. Justice Thomas wrote that the school district decision had unlawfully imposed this requirement. He pointed to recent Court decisions that had forbidden states to prevent religious groups from using public facilities or to receive funding for an undergraduate organization.

Statutes that prohibit the desecration of the U.S. flag have been found to restrict free expression unconstitutionally. In TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson's conviction for burning a U.S. flag during a demonstration. Johnson's actions were communicative conduct that warranted First Amendment protection, even though they were repugnant to many people. Similarly, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the federal Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700, stating that the government's interest in passing the act had been a desire to suppress free expression and the content of the message that the act of flag burning conveys.

The U.S. Supreme Court has generally struck down prohibitions on nudity and other erotic, but nonobscene, expressive conduct. However, in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld a ban on totally nude dancing, on the ground that it was part of a general ban on public nudity. While recognizing that nude dancing generally has been considered protected expressive conduct, the justices pointed out that such activity is only marginally within the perimeter of First Amendment protection.

In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the U.S. Supreme Court upheld a local ZONING ordinance that banned nude-dancing clubs within the city. It found that freedom of speech had not been unconstitutionally restricted because the ordinance did not ban the expressive conduct of nude dancing but only the means for expressing it within the city. It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself. Therefore, the city had the authority to restrict the location of such clubs.

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